When a parent needs help with a dispute involving their child(ren) during court proceedings, sometimes there will be allegations made about the behaviour of the other parent which might need to be investigated by the court, if the other parent denies such behaviour.

What is a Fact Finding hearing?

It is a special type of hearing where the court considers the various allegations parties make against one another and sometimes allegations their child(ren) make. The Court then decide whether, on the balance of probabilities (more likely than not), the allegations are found and, if so, what impact (if any) that would have on child arrangements moving forwards.

The Court now has a wide interpretation of domestic abuse and therefore the following allegations may result in a Fact Finding hearing being directed by the Court:

  1. Domestic abuse to include emotional, psychological, physical, coercive and controlling behaviour
  2. Child abduction
  3. Child abuse
  4. Drugs, alcohol or substance abuse

When will a Fact Finding be ordered?

It is widely accepted that most Judges will try to avoid having a Fact Finding where possible. In addition, the President of the Family Division is actively calling for fewer Fact Findings and confirmed that their use is not the default. They can be costly for all involved and can serve to make matters more acrimonious. However, they do serve a purpose particularly when the allegations are severe enough to impact on the making of a final child arrangements court order.

The Court will consider the following factors when deciding whether to proceed with a Fact Finding:

  1. The views of all of the parties including a welfare officer who helps the court make decisions, known as a CAFCASS officer.
  2. Whether it would affect child arrangements even if an allegation is found
  3. Could another means be used to determine the factual dispute e.g. drug testing
  4. Whether any of the parties have made admissions that would allow the Court to proceed without a Fact Finding
  5. If a party has Legal Aid, is the evidence they used to obtain it sufficient to allow the Court to determine the matter
  6. The nature of the evidence required to resolve the dispute
  7. Having consideration to a welfare checklist
  8. Whether the Fact Finding would be necessary and proportionate

In light of the above, the Court has a wide discretion as to whether to Order a Fact Finding and each case will be treated on its own facts.

It is for this reason that it is very important to obtain legal advice even if you wish to deal with the divorce yourself.

If you need advice on any dispute regarding children arrangements, please speak to a member of our Family Department, or for more information on our family law services, please call us on 01622 759051, or email at maidstone@gillturnertucker.com.